Flynn agt. The Hudson River Rail Road Company.

they are right in this position.

Under the common law practice the plaintiff might bring his action against a common carrier, either in assumpsit, or upon the case. In the one case, it was founded upon the promise which the law implies to perform a duty; in the other, upon the injury resulting from a breach of duty. In either case, the real gravamen of the action was the negligence or misfeasance of the carrier in the performance of his duty. I admit that there is some difficulty in defining the exact boundary between "actions on contract for the recovery of money," embraced in the first subdivision of the 246th section of the Code, and the "other actions" to which the second subdivision applies. There are some actions which are, in their form, clearly actions on contract, and are brought for the recovery of money, and yet are, in their nature and character, actions sounding in damages. Such is the action for breach of promise of marriage. On a former occasion, I felt constrained to hold that the provisions of the first subdivision above mentioned, were applicable to such an action. I confess I have never felt quite satisfied with that decision (Williams vs. Miller, 4 Howard, 94). The same view had previously been taken by the New York Common Pleas in Leopold vs. Poppenheimer (1 Code Rep. 39). Although these cases seem too plainly within the language of the first subdivision to allow an escape, yet I should not regret to see them reexamined and disapproved. The rule ought to be, that when the action is brought for the recovery of a money demand, or a sum certain, judgment may be perfected without application to the court; but in all other cases such application should be required.

In relation to actions against common carriers, I concur in the views expressed by Mr. Justice Johnson, in Clor vs. Mallory (1 Code R. 126). Though a contract, express or implied, may be involved in the action, it is really founded upon the negligence or misfeasance of the carrier. It was so regarded under the former practice. When interest might be collected only upon a judgment recovered in an action upon contract, it was not allowable to collect it upon a judgment against a common carrier, even though the declaration had been assumpsit in form. It was so held, upon the ground that whatever the form of the action, it

Flynn agt. The Hudson River Rail Road Company.

was, in truth, an action on the case (2 R. S. 364, §9). In McDuffie vs. Beddoe (7 Hill, 578), a party, who had purchased a stock of goods at cost prices, had paid for them at the price at which they had been inventoried. Afterwards he filed his bill, alleging that the inventory price exceeded the contract price, and that he had thus been defrauded by the vendor. It was held that this was not an action founded upon contract, although to maintain it, it was necessary to allege and establish an express contract. Fraud was the gravamen of the complaint, and the party against whom judgment was recovered, was held to be liable to imprisonment on that account.

Although an action against a common carrier did, at common law, possess the amphibious character to which I have referred, being made either an action ex contractu, or ex delicto, at the option of the pleader, I am unwilling to admit that it has brought that feature with it into the new system. I think it bears more resemblance to the family of torts than to contracts, and that it ought not to be allowed any of the exclusive privileges that pertain to the latter. I shall hold, therefore, that the plaintiff was irregular in perfecting his judgment, without application to the court. This decision will render it necessary for the plaintiff to amend his summons so as to make it conform to the second subdivision of the 129th section, instead of the first. This he may be permitted to do, within twenty days; and he must also, within the same time, serve upon the defendants' attorney a copy of his complaint. The defendants are to have the usual time to answer or demur after the service of the complaint. Neither party is to have costs upon this motion.

NOTE.-Mitchell agt. Westervell, reported ante page 265, was affirmed, on appeal at the last January general term at Ballston-WILLARD, HAND, CADY and ALLEN, Justices.

Seward agt. Miller.

.SUPREME COURT.

SEWARD agt. MILLER AND MILLER.

An answer denying in terms, specifically, each material allegation of the complaint, without particularizing the allegations, is in effect a general denial, and is therefore insufficient.

It is not, however, sham or irrelevant, and can not be stricken out on motion. Where a motion is made to strike out an answer as sham and irrelevant (Code

1851, § 152), and it is neither, but insufficient on other grounds, the defendant will be allowed to demur, although the time for serving a demurrer may have expired.

Westchester Special Term, February 1852. This is an action against the maker and endorser of a promissory note. The complaint is in the usual form. The answer professes to deny specifically each and every material allegation of the complaint, but does not particularize any allegation. The plaintiff moves to strike it out as a sham and irrelevant answer, or defence, under the 152d section of the Code of 1851.

S. B. STRONG, Justice.-By the 149th section of that Code an answer must contain a specific denial of each material allegation of the complaint controverted by the defendant. It has been contended in behalf of the defendant in this case, that a denial in the words of the statute is sufficient. It might have been so under the corresponding section of the Code of 1849, where the word "general" was used to qualify the denial. It was so difficult, however, to ascertain what was meant by the terms general denial of each allegation, that the decisions upon that provision of the Code, while it was in operation, were by no means uniform. It was, probably, with a view to settle the difficulty resulting from the phraseology of this part of the Code of 1849, and in a manner corresponding with the original design of its framers, that the word general was omitted in the existing Code. The denial must now be specific of each controverted allegation. It can not be specific without mentioning by some particular mark of distinction the allegation which it is designed to controvert. Specification, according to Walker, consists in "distinct notation, determination by a particular mark of distinction, particular mention." In this case there

Seward agt. Miller.

is neither. It is important in every case that the defendant should specify which of the allegations he deems material and intends to controvert, in order that the plaintiff may clearly know what is denied, and what it may be necessary for him to prove. It is peculiarly so, for many reasons, where the defendant is required The denial in this case, although verbally specific, is in effect general, and therefore the answer is not warranted by the Code.

to swear to his answer.

But although the pleading interposed by the defendant in this cause was not warranted by the existing Code, and may, therefore be deemed insufficient, it does not necessarily follow that it is a sham or irrelevant answer. The 152d section, while authorizing the court to strike out sham and irrelevant answers, contains no definition of either of those characteristic terms, nor is there any in the other multitudinous provisions of the Code. They mean now precisely what they did before, and no more.

The word "sham," as defined by lexicographers, means "false, counterfeit, or pretended." It has received the same interpretation when applied to pleadings (1 Chitty on Pl. 574; and 2 Bouvier 375). These authorities are cited with approbation, and the definition adopted by my lamented friend, the late Judge SILL, in his able opinion in Darrow agt. Miller (5 How. Pr. R. 247). According to those authorities, a sham pleading is one known by the party to be false, and put in for the purpose of delay, or other unworthy object. Judge SILL was inclined to extend the term to such pleadings, as may be true in point of fact, but are so impertinent or so grossly frivolous that the court can not but see that the object is to delay or perplex the plaintiff, instead of presenting a defence. It is not material in this case to consider whether the pleading thus characterized by that learned judge would not be rather frivolous than sham, between which, and the appropriate remedies for each, the Code makes a distinction (§ 152, 247). There is nothing in this case to show that the answer is false, or that the defendants' object in interposing it was to delay or perplex the plaintiff.

A pleading is irrelevant which has no substantial relation to the controversy between the parties to the suit. The word irrelevant is comparatively of modern introduction in England.

66

Seward agt. Miller.

It is used in parliamentary debate in that country to signify unassisting, unrelieving," which are in accordance with the etymology of the word. But in Scotland, according to Mr. Elphinstone, it has been for a considerable period a jurisprudential word, and is there used in the same sense as the more appropriate word irrelative. It has, I believe, uniformly received the same interpretation in the courts in this country, where it has been very generally used. Now, a general denial by one party of a material allegation of his opponent, can not be considered as irrelative to their controversy, although it may be informal, or even unavailable by reason of some statutory restriction.

Neither do I think that the answer in question is frivolous. The rule before the adoption of the Code was that a pleading was not frivolous unless the defect was radical and so palpable that no serious argument could be advanced in its support. I am aware that there has been decisions, since the adoption of the Code, that pleadings are frivolous where there is a departure from any requisite which it may prescribe, even in particulars where the construction of the terms may be difficult. But I prefer, and until I may be authoritatively overruled, shall adhere to the old rule. In cases where there can be no reasonable doubt of the invalidity of a pleading in either of the attributes mentioned in the 152d and 247th sections, there should be no hesitation in awarding to the opposite party the summary redress for which they provide. But in all cases of doubt, or where the insufficiency is from any other cause, the party objecting to it should resort to a demurrer, when the point may be more deliberately considered and satisfactorily settled.

The motion to strike out the answer is denied; but as that pleading is defective, I shall not give the defendant costs; and I shall allow the plaintiff to demur, should he be so advised, in ten days.